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Court of Criminal Appeal 23 March 2018

Anderson v R

[2018] NSWCCA 49

Homicide
CRIMINAL LAW SENTENCE APPEAL DEFENCE GROUND OF APPEAL MADE OUT APPLICANT RE SENTENCED.

Citation: Anderson v R [2018] NSWCCA 49
Court: NSW Court of Criminal Appeal
Date: 23 March 2018
Judges: Hoeben CJ at CL; Johnson J; N Adams J

Background

The applicant was charged with murdering his pregnant partner on 3 August 2013. After a jury deadlock at the first trial, the Crown accepted his plea of guilty to manslaughter by excessive self-defence at the commencement of the retrial. The plea was entered on the basis of an Agreed Statement of Facts, which recorded that the deceased had armed herself with a kitchen knife, moved toward the applicant with it, and that a brief struggle ensued during which the applicant stabbed her once in the chest. The Agreed Facts expressly recorded that the applicant believed his conduct was necessary to defend himself, though he accepted it was not a reasonable response.

Hall J sentenced the applicant to 12 years and 9 months imprisonment with a non-parole period of 9 years and 6 months. The applicant sought leave to appeal that sentence.

  • Whether the sentencing judge made findings about the applicant's state of mind that were inconsistent with the Agreed Facts underpinning the guilty plea, specifically the finding that the applicant did not genuinely believe defensive action was necessary at the moment of the stabbing.
  • Whether the sentence was manifestly excessive.

Decision

The Court of Criminal Appeal upheld Ground 1 of the appeal. Hoeben CJ at CL found that Hall J had made findings about the applicant's subjective belief that were irreconcilable with the Agreed Facts. Specifically, Hall J found the applicant had not genuinely believed he needed to defend himself at the moment of the stabbing. Yet the Agreed Facts, which formed the factual basis of the guilty plea, expressly stated that the applicant did hold that belief. A sentencing judge is bound by the factual basis upon which a plea of guilty is entered and cannot make findings contrary to it.

Because Ground 1 was established, the Court found it unnecessary to determine whether the sentence was also manifestly excessive as a standalone ground. The error in the objective assessment of the offence required the sentence to be quashed and the sentencing discretion to be re-exercised.

In resentencing, Hoeben CJ at CL accepted that the offence remained serious. The applicant had forced entry into the unit, been aggressive, and grabbed another woman by the throat before the deceased armed herself. His criminal history, which included recent offences of violence against a former partner and her father, weighed against him. However, the psychological evidence of "depressive and trauma symptoms" was afforded little weight without supporting analysis, and there was limited evidence of rehabilitation prospects. Taking all matters into account, including the agreed fact of the applicant's genuine belief in the need for self-defence, a slightly reduced sentence was appropriate.

Orders Made

  • The sentence imposed by Hall J on 8 April 2016 was quashed.
  • In its place, a sentence of 12 years imprisonment was imposed with a non-parole period of 9 years, both commencing 3 August 2013.
  • The non-parole period expires 2 August 2022; the balance of term expires 2 August 2025.
  • The applicant becomes eligible for release on parole on 2 August 2022.

Key Takeaways

  • A sentencing judge is bound by the Agreed Facts forming the basis of a guilty plea and cannot make findings of fact that contradict them, even where those facts concern the offender's subjective mental state.
  • Where a plea of guilty to manslaughter by excessive self-defence is entered on the basis that the offender genuinely believed defensive action was necessary, that belief must be accepted and given effect in the objective assessment of the offence.
  • In resentencing, the Court of Criminal Appeal reduced the total sentence from 12 years and 9 months to 12 years, reflecting the corrected finding as to subjective belief, while otherwise affirming the sentencing judge's approach to aggravating factors and criminal history.
  • Psychological evidence of "depressive and trauma symptoms" attracted little weight where the report offered a bare conclusion without analytical support, and where there was insufficient evidence of rehabilitation prospects or low likelihood of reoffending.
  • Aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, including that the offence occurred on residential premises, that it caused emotional harm to the deceased's family, and that the applicant was on conditional liberty at the time, remained relevant and were taken into account in the resentencing exercise.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 24, 418, 421
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- R v Anderson [2016] NSWSC 399 (sentence under appeal)
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Goundar v R [2012] NSWCCA 87
- Misiepo v R [2017] NSWCCA 210
- R v Dally [2000] NSWCCA 162; 115 A Crim R 582
- R v Edigarov [2001] NSWCCA 436; 125 A Crim R 551
- R v Forbes [2005] NSWCCA 377
- R v Isaacs (1997) 41 NSWLR 374
- Smith v R [2015] NSWCCA 193